United States Written Response to Questions Asked by the Committee on the Rights of the Child (5/13/2008)Bureau of Democracy, Human Rights and Labor
OPTIONAL PROTOCOL ON THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT
1. Please provide information on the exact national provisions relating to the crime of forced or compulsory recruitment under 18 years of the Optional Protocol on the Involvement of Children in Armed Conflict.
Answer: As stated in the U.S. report to the Committee, U.S. law does not permit the United States to compel the recruitment into military service of any person under the age of 18. The U.S. report also noted that the U.S. selective service, which provided for involuntary induction is inactive (50 U.S.C. App. §§ 451 et seq.). Forced recruitment by non-governmental armed groups could violate any number of state and federal laws, particularly those dealing with abduction.
2. Furthermore, please provide detailed information as to whether the USA assumes extraterritorial jurisdiction over the war crime of conscripting or enlisting children under the age of 15 into the armed forces or using them to participate actively in hostilities. Also in relation to extraterritorial jurisdiction, please indicate whether USA courts have jurisdiction in case of forced recruitment or involvement in hostilities of a person under 18 if committed outside USA, by or against a US citizen. Please provide copies of jurisprudence, if applicable.
Answer: The U.S. war crimes statute (18 U.S.C. § 2441) establishes extraterritorial jurisdiction over various war crimes if the perpetrator or the victim of the crime is a U.S. national or a member of the U.S. Armed Forces. The war crimes statute incorporates or refers to specific provisions of the 1949 Geneva Conventions, the Hague Convention IV of 1907, and the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (when the U.S. is a party to that Protocol). It does not, however, incorporate or refer to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, and does not specifically criminalize the conscription or enlistment of children under the age of 15 into the armed forces or the use of such children to participate in hostilities (nor does the Optional Protocol contain such a requirement). Similarly, the war crimes statute does not specifically address the forced recruitment or involvement in hostilities of a person under 18 outside the United States. Depending upon the circumstances, however, the manner in which children are recruited, used, or treated in hostilities could constitute prohibited conduct under the statute. A copy of the war crimes statute is included in Annex 1.
3. Please inform the Committee of any relevant developments regarding the draft Child Soldiers Prevention Act of 2007 and the draft Child Soldier Accountability Act of 2007.
Answer: The Child Soldiers Accountability Act of 2007 (S. 2135) passed the Senate on December 19, 2007. The bill is now pending in the House Judiciary Committee. The Child Soldier Prevention Act of 2007 (H.R. 2620, H.R. 3028, and S. 1175) has been introduced in both houses of Congress but has not as yet seen further congressional action.
4. Please clarify whether, in a state of emergency or armed conflict, persons under 18 years of age could be required to take direct part in hostilities.
Answer: Article 1 of the Protocol provides that “States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.” In the view of the United States, Article 1 applies in cases of a state of emergency or armed conflict.
5. Please inform the Committee whether persons under the age of 18 have been deployed to areas of armed conflict, notably to Iraq and Afghanistan, since the entry into force of the Protocol in 2002. If so, please also detail the safeguards undertaken in order to ensure that they do or did not take part directly in hostilities.
Answer: The Department of Defense (DoD) has deployed more than 1.7 million service members in support of Operations Enduring Freedom and Iraqi Freedom (OIF/OEF). There have been no reports of service members under 18 being directly engaged in hostilities.
It is the policy of all of the military departments to ensure that service members under the age of 18 do not take direct part in hostilities, should they be deployed to areas of armed conflict. In addition, the military departments’ policy and procedures restrict the assignment of service members to units deployed overseas or scheduled to deploy operationally before the service member’s eighteenth birthday.
The following summarizes the policies each Service employs to ensure that no one under the age of 18 engages directly in hostilities. Also summarized below are the results of DoD inquiries regarding whether persons under the age of 18 have been deployed in support of OEF/OIF in fiscal year 2008 (FY08). Inquiries revealed that three persons under the age of 18 were deployed to Kuwait, although there are no indications that these three individuals engaged in hostilities or were sent into Iraq or Afghanistan.
· Navy guidance is that no Sailor under the age of 18 will be assigned to an operational unit. If, however, a Sailor is inadvertently assigned to an operational unit that is deployed, the Commander’s responsibility is to ensure that the service member is not directly involved in causing harm to the enemy. Steps are taken to ensure Sailors under the age of 18 are not sent to deployable units; for instance, a Sailor’s record is “flagged” and the proposed assignment is reviewed by the Deputy Division Director, generally the first commissioned officer in that Sailor’s chain of command. As of January 31, 2008 reports indicate that there was one Sailor under the age of 18 deployed in support of OIF/OEF (Kuwait) in FY08. This individual was 39 days short of his 18th birthday when deployed to Kuwait on November 5, 2007, and was still deployed at the time of the inquiry. Although the Sailor was far from direct hostilities, the Department of the Navy has stated that the Sailor, who turned 18 on December 14, 2007, was deployed “…contrary to the requirements of the Military Personnel Manual. Those requirements have been re-emphasized to all personnel involved in the distribution of enlisted Sailors.”
· Marine Corps policy restricts the deployment of Marines under the age of 18. Marines under the age of 18 will not be assigned to a unit scheduled to operationally deploy prior to the Marine's 18th birthday. Further, commanding generals and commanding officers will not operationally deploy a Marine under 18 years of age. On April 6, 2007, Marine records were updated with the duty limitation remark of code “P” for all Marines less than 18 years of age for ease of identification in assignment and deployment processing. As of January 31, 2008, there were no Marines under the age of 18 deployed in support of OIF/OEF in FY08.
· The Air Force identifies Airmen under the age of 18 with an Assignment and Deployment Availability code in the Military Personnel Data System (MilPDS) denoting that they are ineligible for assignment, temporarily or permanently, to a hostile fire or imminent danger area. Further, the Air Force deployment system will not allow orders to be generated for such individuals, keying on the above-mentioned Availability code. As of January 31, 2008, there were no Airmen under the age of 18 deployed in support of OIF/OEF in FY08.
· The Army’s policy is articulated in personnel, mobilization, and readiness regulations that provide procedural guidance to prevent the assignment of soldiers under the age of 18 outside the continental United States. As an additional precaution, the Army promulgated messages in June 2004 and August 2006 reminding commanders of the policy “not to assign or deploy Soldiers, less than 18 years of age outside the continental United States....” As of January 31, 2008, there were two Soldiers under the age of 18 who were deployed to Kuwait in support of OIF/OEF in FY08. However, the information available indicates that the two Soldiers were returned to the United States within 2-3 days of arriving in Kuwait.
The U.S. Army has confirmed that during 2003 and 2004, there were 62 17-year-old soldiers reported to have served in either Iraq or Afghanistan. Upon realizing that this was inconsistent with their policy, the Army took action to ensure that their assignment procedures and policies minimized the possibility of 17-year-old soldiers being assigned or deployed outside the continental United States. They issued supplemental guidance to their field commanders, and the policy was featured in a March 2004 Army Times article. As of March 29, 2004, these soldiers reached the age of 18 or were no longer serving in these locations. There are no reports that any of these 17-year-old soldiers were at any time engaged directly in hostilities. In addition, we have had no reports of any service members under the age of 18, other than aforementioned 62 Army soldiers, being deployed to Iraq or Afghanistan.
· It is Coast Guard practice not to assign recent, non-rate basic training graduates directly to conflict areas or to any of the Coast Guard cutters serving in those regions. No Coast Guard members under the age of 18 have been deployed in support of OIF/OEF.
6. Please provide the Committee with disaggregated data (by sex and ethnicity) on the number of voluntary recruits under the age of 18 for the years 2004, 2005, 2006 and 2007.
Answer: Annex 2 provides the requested data, which includes the number of individuals who were under the age of 18 at the time they voluntarily enlisted in the Armed Forces of the United States, broken out by active and reserve components, gender, and ethnicity for fiscal years 2004 to 2007.
The data shows that, of those that joined the armed services at age 17 across the four-year period, approximately 76 percent were male and 24 percent were female. With respect to ethnicity, approximately 64 percent of those that acceded were “white,” 12 percent were “Hispanic,” 11 percent were “African American,” and approximately 13 percent were “American Indian/Alaskan,” “Asian or Pacific Islander,” or “Other.” The Annex shows a total of 94,005 recruits of 17-year-olds. This represents 7.6 percent of the accessions to all Services from 2004 to 2007.
7. Please provide further information on the methods used by military recruiters and which safeguards are available to prevent misconduct, coercive measures or deception. Please also inform the Committee of the number of cases of misconduct among recruiters have been reported, the number of investigations into such cases and the sanctions applied since the entry into force of the Protocol.
Answer: The Department of Defense (DoD) policy is to not recruit any individual into the armed forces who is under the age of 17, and recruitment of youth that are age 17 requires the consent of a parent or guardian. Recruiters are trained to abide by strict standards of conduct and are informed of the roles and responsibilities of recruiters, which prohibit the use of coercive measures or deception. In addition, recruiters are expected to remain professional at all times and should prevent any appearance of recruiter impropriety in the recruiting process. Policy prohibits recruiters from having personal or intimate relationships with potential applicants; they are prohibited from falsifying enlistment documents, concealing or intentionally omitting disqualifying information, encouraging applicants to conceal or omit disqualifying information; and they are prohibited from making false promises or coercing applicants. Recruiters who violate these basic standards are subject to punishment under the Uniformed Code of Military Justice. Military recruiters are subject to frequent and periodic reviews of their conduct, which they are required to pass.
In 2006, the Office of the Under Secretary of Defense for Personnel and Readiness published a directive-type memorandum that requires semi-annual reporting (January and July) of “recruiter irregularities” – defined as “those willful and unwillful acts of omission and improprieties that are perpetrated by a recruiter or alleged to be perpetrated by a recruiter to facilitate the recruiting process for an applicant.” The report is used for internal monitoring and provided upon request.
The report for 2006 is included as Annex 3. The reports lag because of the time needed to resolve each case. In January 2008, DoD received data for 2007 cases, of which more than 400 are still considered “on-going.” These are cases of improprieties involving the entire population of recruits from 17 to 42 years of age, and each allegation of recruiter impropriety is reviewed thoroughly. Local Commanders, in consultation with legal counsel and inspector general personnel, evaluate the details of each claim. Based on the facts resulting from the investigation, the Services may act administratively to resolve the issue or they may ask law enforcement investigators to take the case. If a determination is made that the recruiter knowingly violated established policy, he or she is subject to punishment under the Uniform Code of Military Justice. Each case is reported regardless of final disposition, and the next report, scheduled for release in July 2008, should provide a more complete assessment of the 2006-2007 cases.
As the report illustrates, substantiated claims of recruiter irregularities are extremely few, relative to the total number of recruits. It is also important to note that the monitoring system has a much broader focus than child recruitment, and that irregularities involving the recruitment of children are rare. In 2006, for instance, the number of confirmed and redressed instances of misconduct perpetrated on individuals under the age of 18 was fewer than 30, or less than 0.08 percent of U.S. Military accessions.
8. Please provide information regarding the training on the provisions of the Optional Protocol provided for soldiers serving in military operations abroad, notably in Iraq and Afghanistan. Please also inform the Committee whether military codes of conduct and rules of engagement take into account the Optional Protocol.
Answer: The United States Initial Report and these responses describe at length the measures undertaken by the United States to implement its obligations under the Protocol, including steps taken to ensure that persons under the age of 18 do not take a direct part in hostilities and are not compulsorily recruited into the U.S. Armed Forces. We refer you to the answer to Question 5 for additional information. As individual units do not recruit soldiers and as control measures are in place to ensure that persons under the age of 18 are not in a position to engage in hostilities, it is unclear what the purpose would be of individualized training with respect to the Protocol.
9. Please explain how the State party ensures that private military and security companies contracted by the Department of Defense and the Department of State are informed of the provisions of the Protocol and the obligations contained therein. Please inform the Committee what sanctions can be applied to private contractors for acts contrary to the Protocol and whether there are examples of such cases.
Answer: Private security companies contracted by the Departments of State and Defense to protect U.S. Government personnel or others in areas of ongoing combat operations are not part of the U.S. armed forces and are not authorized to engage or participate in offensive combat operations. Nonetheless, at a minimum these armed contractor personnel must be at least 21 years old, and properly vetted, a fact that is verified by the Departments as part of a mandatory resume review and certification process. Such private security companies are also required by their contract to comply with all applicable law and government regulations. In addition, private companies contracted by the Department of State to provide local guards for diplomatic or consular persons or property in non-combat environments are required to obtain all licenses and permits (both company and individual) required under the laws of the host government to operate as a security company providing guard services. All contractors are required to meet any minimum age, experience, appropriate background check, and training requirements established by the host government prior to performing work under a Department of State or Defense contract.
10. Please inform the Committee of the training and dissemination of the Protocol among relevant professional groups working at the national level with children who may have been recruited or used in hostilities, including teachers, migration authorities, police, lawyers, judges, medical professionals, social workers and journalists.
Answer: As outlined in the Initial Report of the United States, the primary means of disseminating the principles and provisions of the Optional Protocol to domestic groups, including to law enforcement and the judiciary, is through U.S. domestic law and policy which is largely co-extensive with U.S. obligations under the Protocol. As appropriate, the United States explicitly incorporates the principles and provisions of the Optional Protocol into its internal training programs and policy guidance documents. For instance, the U.S. Citizenship and Immigration Service (USCIS) includes information on the Optional Protocol and a link to the Protocol in its lesson plan on “Guidelines for Children’s Asylum Claims,” which is part of the Asylum Officer Basic Training Course. The text of the Optional Protocol is also posted on the U.S. Department of State website (under “Democracy, Human Rights and Labor”).
Further, as the Committee is aware, the United States has an extremely active civil society. Although the United States government does not monitor the training and dissemination of the Protocol by civil society groups, there are many organizations and institutions of civil society that are vigorously engaged on issues relevant to the Optional Protocol.
11. Please provide disaggregated data (including by sex, age and country of origin) covering the years 2005, 2006 and 2007 on the number of asylum-seeking and refugee children coming to the USA from areas where children may have been recruited or used in hostilities. Please inform the Committee how refugee and asylum claims from children who have been recruited or used in situations of armed conflict are considered.
Answer: Annexes 4-7 provide the data requested by the Committee. Statistics are provided for those countries identified in the UN Secretary General’s Report on “Children and Armed Conflict” as having armed forces or groups that recruit or use children in situations of armed conflict. UN Doc. No. A/62/609, S/2007/757 (Dec. 21, 2007); see Annexes I and II. Those 13 countries are: Afghanistan, Burma (Myanmar), Burundi, Central African Republic, Chad, Colombia, Congo (Democratic Republic of), Nepal, Philippines, Somalia, Sri Lanka, Sudan, and Uganda.
The data provided in Annexes 4-6 include the number of children (under the age of 18) who applied for asylum with the U.S. Citizenship and Immigration Services (USCIS) in the United States or were processed overseas by USCIS or the Department of State for possible admission into the United States as a refugee. These numbers reflect children who applied for asylum or refugee status in their own right; that is, they do not include the numbers of children who applied for such status as dependents on their parents’ applications. In the years in question, USCIS interviewed 190 child refugee resettlement applicants and 80 child asylum applicants from the 13 identified countries.
Numbers of child asylum seekers from the above countries are those who applied affirmatively with USCIS and do not include the numbers of children from these countries who applied for asylum as a defense to removal while in removal proceedings. Annex 7 provides the relevant data on children filing asylum claims in defensive removal proceedings. In the years in question, the Department of Justice’s Executive Office for Immigration Review (EOIR), the agency with responsibility for the adjudication of asylum claims filed by children as a defense to removal while in defensive removal proceedings, encountered a total of 14 cases from three of the countries examined (Colombia, Congo and Somalia). This number also includes two children who turned 18 years of age after the start of removal proceedings. This number does not include cases that were referred by USCIS from the affirmatively filed asylum cases and placed in removal proceedings.
Consideration of refugee and asylum claims from children
who have been recruited or used in situations of armed conflict
It is conceivable that children who have been recruited or used in situations of armed conflict may be eligible for asylum or refugee protection based on this shared past experience. At least one court has held that where an applicant for asylum can establish that his or her status as a former child soldier is the characteristic for which he or she has been or will be subjected to forms of persecution other than the recruitment itself, a refugee or asylum applicant may be eligible based on the applicant’s membership in a particular social group. See Lukwago v. Ashcroft, 329 F.3d 157, 178-79 (3d Cir. 2003) (holding that class of former child soldiers who have escaped fits within the statutory definition of a particular social group). But to qualify as a “particular social group” for purposes of the U.S. asylum and refugee laws, the alleged group must, inter alia, “have the kind of social visibility that would make them readily identifiable to those who would be inclined to persecute them.” Matter of A-T-, 24 I. & N. Dec. 296, 303 (BIA 2007) (citing Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74-75 (BIA 2007), aff’d, Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) (per curiam), and Matter of C-A-, 23 I. & N. Dec. 951, 959-61 (BIA 2006)), aff'd, Castillo-Arias v. U.S. Att'y Gen., 446 F.3d 1190 (11th Cir. 2006)). An applicant’s status as a child, on the other hand, is not sufficient, on its own, to establish a particular social group, as children are a large and diverse group and such a group does not tend to meet the particularity requirement of a particular social group. See, e.g., Escobar v. Gonzales, 417 F.3d 363, 367-68 (3d Cir. 2005); Lukwago, 329 F.3d at 171-72.
Different considerations come into play when the persecution being considered in an asylum or refugee claim is the forced recruitment itself. Where individuals are targeted for forced recruitment because they are viewed as desirable combatants, there is generally not a nexus between the forced recruitment and a protected characteristic. See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). If, however, a child was subject to forced recruitment on account of another protected characteristic (such as race, religion, nationality, or political opinion), that child might be eligible for refugee or asylum status, presuming there are no bars to eligibility.
Children, like adults, who have been recruited or used in situations of armed conflict, may be inadmissible to the United States for reasons related to national security and terrorism-related activities. See Immigration and Nationality Act (INA) § 212(a)(3)(B). Because most armed resistance organizations would meet the definition of a “terrorist organization” under the INA, a child’s association with, or activities on behalf of, these organizations may impact that child’s eligibility for asylum or refugee protection. Recruitment of children by a state, on the other hand, would not likely raise the terrorism-related grounds of inadmissibility.
The INA provides the Secretary of Homeland Security and the Secretary of State with the discretionary authority to determine that certain terrorism-related grounds of inadmissibility will not apply to specific cases. INA § 212(d)(3)(B)(i). A process for exempting the material support ground of inadmissibility has been in place since 2006, when the Secretary of State exercised her exemption authority for refugee resettlement applicants who had provided material support to eight particular organizations. To date, the Secretary of Homeland Security has exercised his exemption authority for individuals who provided material support to any of the following groups: 1) Karen National Union/Karen National Liberation Army (KNU/KNLA); 2) Chin National Front/Chin National Army (CNF/CNA); 3) Chin National League for Democracy (CNLD); 4) Kayan New Land Party (KNLP); 5) Arakan Liberation Party (ALP); 6) Tibetan Mustangs; 7) Cuban Alzados; 8) Karenni National Progressive Party (KNPP); 9) ethnic Hmong individuals and groups; and 10) the Front Unifié de Lutte des Races Oprimeés (Montagnards).
The Secretary of Homeland Security also exercised his exemption authority with respect to material support provided under duress to undesignated terrorist organizations and certain organizations designated by the U.S. Department of State as terrorist organizations, where the totality of the circumstances warrants the favorable exercise of discretion. At this time, the exemption authority for material support provided under duress to designated organizations has been authorized for material support provided under duress to the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army of Colombia (ELN), and the United Self-Defense Forces of Colombia (AUC). Additional designated and undesignated groups have been identified, and are being reviewed in an inter-agency process for future exercises of the exemption authority.
Under the Consolidated Appropriations Act, 2008 (CAA), signed on December 26, 2007, the ten undesignated groups listed above no longer qualify as terrorist organizations for acts or events that occurred before the date of enactment. As a result, many activities or associations with these groups, including receipt of military-type training from one of these groups, no longer constitute a bar to asylum or refugee status. However, former combatants on behalf of these named groups do not qualify for an automatic exemption under the CAA. The CAA also provides the Secretary of Homeland Security and the Secretary of State with the authority to exempt almost all of the national security-related grounds of inadmissibility under the INA. However, the CAA prohibits exemptions for members or representatives of designated terrorist organizations; those who, on behalf of a designated terrorist organization, “voluntarily and knowingly” engaged in terrorist activity; endorsed or espoused terrorist activity or persuaded others to do so; or who “voluntarily and knowingly” received military-type training. The U.S. Government is currently examining whether to issue additional exemptions based on the CAA's changes in law.
Additionally, where an applicant for asylum or refugee status, whether a child or an adult, ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion, that applicant is barred from a grant of asylum or refugee status, although they remain eligible for protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Cases involving children who have been recruited or used in situations of armed conflict may require evaluating whether the persecutor bar is applicable.
12. Please inform the Committee of;
(a) the number of children detained at Guantanamo Bay and at other US administered detention facilities abroad since 2002;
Answer: Since 2002, the United States has held approximately 2,500 individuals under the age of 18 at the time of their capture. Juvenile combatants have been detained at Guantanamo Bay, in Iraq, and in Afghanistan.
The United States does not currently detain any juveniles at Guantanamo Bay. In the entirety of its existence, the Guantanamo Bay detention facility has held no more than eight juveniles, their ages ranging from 13 to 17 at the time of their capture. It remains uncertain the exact age of these individuals, as most of them did not know their date of birth or even the year they were born. Department of Defense medical personnel assessed that three of the juveniles were under the age of 16, but could not determine their exact age. All three juveniles under the age of 16 held at Guantanamo were transferred back to Afghanistan in January 2004. Three other juveniles were transferred back to their home countries in 2004, 2005, and 2006, respectively.
Since 2002, the United States has held approximately 90 juveniles in Afghanistan. As of April 2008, there are approximately 10 juveniles being held at the Bagram Theater Internment Facility as unlawful enemy combatants.
Since 2003, the United States has held approximately 2,400 juveniles in Iraq. The juveniles that the United States has detained have been captured engaging in anti-coalition activity, such as planting Improvised Explosive Devices, operating as look-outs for insurgents, or actively engaging in fighting against U.S. and Coalition forces. As of April 2008, the United States held approximately 500 juveniles in Iraq.
(b) the length of time they have been deprived of liberty;
Answer: The U.S. Department of Defense detains enemy combatants who engaged in armed conflict against U.S. and Coalition forces or provided material support to others who are fighting against U.S. and Coalition forces. U.S. forces have captured juveniles, whom we believed were actively participating in such hostilities. Although age is not a determining factor in whether or not we detain an individual under the law of armed conflict, we go to great lengths to attend to the special needs of juveniles while they are in detention.
The United States has a number of policies in place that attempt to limit the length of time a juvenile is held in detention. The average stay of a juvenile in detention is under 12 months. Although this is not true for every case, we do our best to ensure that the overwhelming majority of juveniles in detention are released within the 12-month timeframe.
In Iraq, a great majority of juvenile detainees are released within six months, and most are currently held for no more than 12 months. A very small percentage of the juveniles detained in Iraq have been held for longer than a year, as they were assessed to be of a high enough threat level to warrant further detention. There also have been a handful of instances where a juvenile has been captured more than once and returned to detention after being determined once again to be a security threat.
In Afghanistan, the Department of Defense detains unlawful enemy combatants as defined in the Department’s Directive 2310.01E, The Department of Defense Detainee Program. The United States may, under the law of armed conflict, detain unlawful enemy combatants for the duration of the conflict, regardless of their age at the time of capture. Nevertheless, the United States has instituted robust processes to review the necessity for continued detention and release those whose threat can be otherwise mitigated. In Afghanistan, a detainee’s unlawful enemy combatant status is assessed immediately upon capture, reviewed again within 75 days of entry into the Theater Internment Facility, and is re-assessed every six months. Detainees are given the opportunity to provide input into this status determination.
The United States does not currently detain any juveniles at Guantanamo Bay. Of the eight juveniles who were detained at Guantanamo Bay, only two remain, who are now 21 and approximately 23 years old, respectively, and are facing trial by military commission. The three juveniles detained in Guantanamo, who were under the age of 16, were transferred back to Afghanistan by 2004. The Department of Defense worked with UNICEF to have these juveniles accepted into UNICEF’s rehabilitation program for child soldiers in Afghanistan. One of the juveniles returned to the fight and was recaptured on the battlefield in Afghanistan engaging in anti-coalition activity. The other three juveniles were transferred back to their home countries in 2004, 2005, and 2006, respectively.
(c) the charges raised against them;
Answer: As the committee is aware, the United States and its coalition partners are engaged in a war against al-Qaida, the Taliban, and their affiliates and supporters. The law of armed conflict allows parties to the conflict to capture and detain enemy combatants without charging them for crimes. The U.S. Supreme Court, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), affirmed that the detention of enemy combatants is a fundamental and accepted occurrence in war, and concluded that the United States is therefore authorized to hold detainees for the duration of the conflict. This is consistent with the Geneva Conventions. The principal rationale for detention during wartime is to prevent combatants from returning to the battlefield to re-engage in hostilities.
In certain cases, the U.S. Government or the host nation may choose to prosecute a detainee for crimes. Both detainees who were picked up as juveniles and who remain at Guantanamo Bay have been charged for prosecution by military commission. Omar Khadr is currently 21 years old and is facing trial by military commission on the following charges: murder in violation of the law of armed conflict, attempted murder in violation of the law of armed conflict, conspiracy, providing material support to terrorism, and spying. Mohammed Jawad, who is approximately 23 now, is being charged with attempted murder in violation of the law of war and intentionally causing serious bodily injury. Mr. Khadr and Mr. Jawad are currently the only two individuals captured under the age of 18 that the U.S. Government has chosen to prosecute under the Military Commissions Act of 2006.
(d) the legal assistance available to them;
Answer: Under the law of armed conflict, the purpose of detention is to prevent a combatant from returning to the battlefield, and, therefore, a detainee would generally not be provided legal assistance. Nevertheless, there are numerous processes that the United States conducts to ensure that a detainee is being properly held as a threat to security, including some processes that include attorneys, administrative hearings, and the ability for a detainee to represent himself. All detainees, regardless of age, are advised of the reason for their detention and undergo periodic reviews.
The initial determination of a detainee’s status is made by forces at the point of capture. It is not always clear at the point of capture whether the individual is under the age of 18. Because many of our enemies do not wear uniforms, or other identifying insignia, it is often difficult for our forces engaged in combat to ascertain who the enemy is and whether those captured do indeed pose a threat. Detainees are moved away from the active battlefield as quickly as practicable, as required under Department of Defense Directive 2310.01E, and are reviewed by the brigade and division unit levels before being transferred to a Theater Internment Facility (TIF). Following their transfer to a TIF, the Combatant Commander, or his designee, makes a determination as to the detainee’s status and assesses whether there is a need to continue detaining the individual. If the command is reasonably sure the individual is a juvenile, generally based on an assessment done by military medical personnel, he is separated from the adult detainee population, and special protections and programs will be afforded him.
In Afghanistan, the determination of a detainee’s status must be made within 90 days of capture. The detaining Combatant Commander produces a written assessment regarding the detainee’s status based on a review of all the available and relevant information. In Afghanistan, a detainee’s unlawful enemy combatant status is assessed immediately upon capture, reviewed again within 75 days of entry into the TIF, and is re-assessed every six months. Detainees are given the opportunity to provide input into this status determination. The Commander may also review the status of any detainee under his control at any time based on any new information that becomes available.
In Iraq, detainees are being held by U.S. forces as imperative threats to security with the authorization of the U.N. Security Council and at the request of the sovereign Iraqi government. Review of a detainee’s status occurs at several different levels. The first level of review is called the Detention Review Authority and is completed by the detaining unit commander and the unit’s Staff Judge Advocate to assess whether the individual is an imperative security threat. Approximately 50 percent of those initially detained in Iraq are determined not to be an imperative security threat, and these individuals are released at the unit location. Those assessed to be a threat are transferred to the TIF.
At the TIF, the detaining command Magistrate Cell, consisting of judge advocates, conducts a thorough review of each individual’s case. Based on this review, the Magistrate Cell either recommends the detainee be expeditiously released or retained as an imperative security threat. Additionally, the Cell recommends either that the detainee be referred to the Central Criminal Court of Iraq (CCCI) if there are grounds for criminal prosecution, or that the detainee’s case be referred to the Combined Review and Release Board (CRRB) if he is a security internee. The CRRB process is consistent with a review under Article 78 of Geneva Convention IV. The CCCI or CRRB, as appropriate, forms the third review in this system.
Through each of the reviews conducted at the TIF, the detainee is notified in writing and provided the opportunity to present information for consideration. Additionally, a detainee is authorized access to an attorney and, if referred to the CCCI, will be provided a government defense attorney if he does not have private counsel.
All detainees at Guantanamo Bay are allowed to seek legal representation, and are provided review of their enemy combatant status in the U.S. federal courts. Those detainees who are being prosecuted by military commission have additional counsel rights.
In the case of Omar Khadr, a military Judge Advocate has been assigned as his defense counsel. In addition, Mr. Khadr has two Canadian civilian attorneys, who operate as consultants on his defense team. The United States Government remains in dialogue with the Canadian Government, as Mr. Khadr is a Canadian citizen. Representatives from the Canadian Government have visited Mr. Khadr and continue to do so on a regular basis. In the case of Mohammed Jawad, a military Judge Advocate has been assigned as his defense counsel. Private, civilian counsel would also be allowed as consultants to Mr. Jawad, if any were to request to represent him.
(e) the physical and psychological recovery measures available to them;
Answer: The Department of Defense recognizes the special needs of young detainees and the often difficult or unfortunate circumstances surrounding their situation. We have procedures in place to evaluate detainees medically, determine their ages, and provide for detention facilities and treatment appropriate for their ages. Every effort is made to provide them a secure environment, separate from the older detainee population, as well as to attend to the special physical and psychological care they may need.
All detainees in DoD custody, wherever they are held, have access to medical professionals who assess their physical and psychological needs. The juvenile detainees are also attended to by medical professionals, who recognize that because of their age, they require special care.
One of the juvenile detainees at Guantanamo was diagnosed and treated for Post Traumatic Stress Disorder. In addition, those who were assessed to be under the age of 16 were provided education courses in their own language, including instruction in math and English, were allowed to watch age-appropriate movies, and had access to a small field on which to play. Each one was allowed time for regular prayer and for study.
In Iraq, a Juvenile Education Center was opened on August 12, 2007. The Iraqi Government’s Ministry of Education (MoE) and the Multi-National Forces-Iraq (MNF-I) have worked together to incorporate Iraqi standards for a curriculum to provide basic educational instruction for all juvenile detainees up to age 17.
On February 12, 2008, the MoE and Task Force 134, MNF-I’s detention command task force, signed a Memorandum of Understanding that provides a plan for upcoming improvements to the educational programs offered to juvenile detainees while in detention. In January 2008, each student underwent a written assessment of their educational abilities, allowing the task force to ensure each juvenile is placed in the classroom that best serves his needs. All juvenile detainees are offered attendance in basic educational programs in grades 1-6, with a core curriculum of six subjects: Arabic reading, writing, and language skills; math instruction from simple addition through algebraic equations; history and social studies beginning with those of Iraq and then the world; earth science and biology; civics instruction in the structure of the Iraqi government and basic citizenship; and, instruction in English numbers, letters, and phrases. The program is designed so that the juveniles can continue their education after their release, and efforts are being made to incorporate the MoE standards and curriculum.
The education center features classrooms, a library, a medical treatment facility, and four soccer and athletic fields. Juveniles are afforded the chance to exercise, to paint, and to participate in activities appropriate for persons of their age. They are transported to and from the education facility daily from Camp Cropper, and plans are underway to build a permanent housing unit at the juvenile education center to facilitate their education and physical activities more effectively. Teachers were chosen from Baghdad and surrounding provinces and may live at the school while they are teaching.
The aim is to contribute positively to the future of Iraq by offering hope for personal growth through education and by working to empower the juvenile detainees through proper counseling and guidance. The juvenile education center offers an education and life skills that will be beneficial upon their eventual release and reconciliation into society. The hope of the United States is that these educational opportunities will spark a desire inside the youth of Iraq to continue their education and allow them to become the building blocks upon which they can rebuild their country.
In Afghanistan, juveniles have access to the Mental Health Unit (MHU) at the Theater Internment Facility (TIF). The MHU is staffed by a psychiatrist, a social worker, and a psychological technician. The MHU offers detainees, including juveniles, the opportunity to participate daily in group therapy sessions with a psychiatrist. Since the program’s inception, 45 detainees have participated in these therapy sessions, although no juveniles have requested to participate, or required the care provided.
In January 2008, DoD instituted a program that enables detainees at the TIF to visit with family members via video teleconference (VTC). The program operates on a weekly basis. Since its inception, over half of the detainees held at the TIF have participated, many of them multiple times. DoD is currently developing security enhancements that should enable family visits at the TIF sometime in the next few months.
In the last several months, the guard force at the TIF has noted an improvement in morale and a sharp decrease in the number of disciplinary problems among detainees. These developments coincided with the creation of the MHU and implementation of the family visit VTC program.
Space constraints at the TIF have limited the ability to offer detainees educational, religious, and vocational programs in the past, but plans are underway to establish such programs in the future. As in Iraq, the aim of these programs is to offer all detainees an opportunity for personal growth that will be beneficial upon their eventual release and reintegration into society.
Similarly, space constraints at the TIF have limited the frequency, duration, and space available for detainee recreation, but plans are underway to remedy the situation.
(f) the current status of their legal situation;
Answer: The United States is in a state of armed conflict with Al Qaida, the Taliban, and their supporters. Under the law of armed conflict, countries may lawfully detain enemy combatants until the cessation of active hostilities. The principal rationale for the detention of enemy combatants during wartime is to prevent them from returning to the battlefield to re-engage in hostilities.
In Iraq, all detainees, regardless of age, are held by U.S. forces as imperative threats to security at the request of the sovereign Iraqi government and pursuant to a UN Security Council Resolution. As of April 2008, U.S. forces held approximately 500 juveniles under this framework.
In Afghanistan, detainees are held under the law of armed conflict to prevent them from re-engaging in hostilities against our forces. As of April 2008, U.S. forces held approximately 10 juveniles under this legal framework. U.S. forces have not referred any juveniles to the Government of Afghanistan to face charges.
At Guantanamo, the United States is detaining Omar Khadr and Mohammed Jawad, the only two individuals captured when they were under the age of 18, whom the United States Government has chosen to prosecute under the Military Commissions Act of 2006. Mr. Khadr is being charged with murder in violation of the law of armed conflict, attempted murder in violation of the law of armed conflict, conspiracy, providing material support to terrorism, and spying. His case continues to move toward trial and motions continue to be heard by the military judge. Mr. Jawad is being charged with attempted murder in violation of the law of armed conflict and intentionally causing serious bodily injury. His case continues to move forward and pre-trial hearings have begun before a military judge.
(g) how Military Commissions take into account the rights of children;
Answer: The Military Commissions Act of 2006 establishes Military Commission procedures for trying alien, unlawful enemy combatants in a manner that fully complies with Common Article 3 of the Geneva Conventions. The legislation incorporates numerous due process safeguards for defendants, including: an extensive appeals process, including the right to appeal final Military Commission convictions to the U.S. federal courts (which includes the right to seek review in the United States Supreme Court); the right to be present throughout the trials; the presumption of innocence; the right to represent oneself; the right to cross-examine prosecution witnesses; the prohibition on double jeopardy; an absolute bar on admission of statements obtained through torture, or through cruel, inhuman or degrading treatment in violation of the Detainee Treatment Act of 2005; a prohibition against compelled self-incrimination; and access to counsel.
The trials will ensure that the unlawful combatants who are suspected of war crimes are prosecuted before regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized people. These trials will be fair and be conducted with the utmost respect for judicial rights and procedural safeguards, and will be open to the media.
It is not unprecedented for juveniles to face the possibility of a war crimes trial. In fact, the Geneva Conventions and their Protocols contemplate the prosecution of those under the age of 18 for violations of the laws of armed conflict. Article 6(4) of Additional Protocol II prohibits the application of the death penalty to those under 18 at the time the offense was committed, thereby suggesting that prosecutions not resulting in the imposition of death are not prohibited. This is also true of the International Tribunals from Rwanda, the Former Yugoslavia and Sierra Leone. A juvenile’s age and upbringing may be considered by a Military Commission, the Convening Authority, and the Court of Military Commission Review – the latter two of which will review the findings and the sentence.
In the event that a Military Commission must call a child (defined as being 16 or younger) as a witness, there are special protections within the Manual for Military Commissions. For instance, the Rule for Military Commission (RMC) 804c permits an accused to absent himself voluntarily in the event a military judge allows the child witness to testify remotely. RMC 914A permits the use of remote live testimony of a child, unless the accused absents himself under 804c. In addition, the Military Commission Rules of Evidence (MCRE) have provisions that deal with children. For example, MCRE 104 identifies children as people the military judge might have to make special provisions for by utilizing protective testimonial procedures. MCRE 611d gives a military judge the authority to permit remote live testimony when a child (as above, defined as being 16 or younger) cannot testify in court because of fear, likelihood of suffering mental trauma as a result of providing testimony in court, mental infirmity, or because of the behavior of the accused (e.g., acts of intimidation). There is no spousal privilege when an accused commits a crime against the spouse or the child of either the spouse or the accused. See MCRE 504c2A.
(h) remedies available should they not be found guilty of any offense.
Answer: The purpose of the detention of enemy combatants during wartime is not for prosecution; rather, the principal rationale for such detention is to prevent them from returning to the battlefield to re-engage in hostilities. The overwhelming majority of juveniles held by the United States will not face any charges. Each detained juvenile will have his individual circumstances reviewed at least every six months to determine whether the detainee continues to pose a threat.
In Iraq, if it is determined that a detainee can be successfully reintegrated into society and will no longer pose a threat to coalition forces or to innocent civilians, the detainee will be released.
In Afghanistan, detainees who still pose a limited threat that can be mitigated with conditions less restrictive than continued detention are transferred to the Government of Afghanistan for participation in the Takhim e-Solik (Peace Through Strength, or PTS) reconciliation program. This program provides for the release of Afghan detainees to their tribal leaders with assurances that they will not return to the fight. The tribal leaders assume responsibility for the former detainees upon their transfer. So far, no juveniles have participated in the PTS program; however, it remains one option available for the Afghans to help reintegrate juveniles into their society.
As previously noted, the United States has chosen to prosecute two individuals who are accused of committing war crimes when they were less than 18 years of age. In all instances, prosecution by Military Commission is not tied to the threat a detained enemy combatant poses on the battlefield. An individual who is not successfully prosecuted by Military Commission may still warrant detention under the law of armed conflict in order to mitigate the threat posed by the detainee.
13. Please inform the Committee whether national legislation prohibits the sale of arms when the final destination is a country where children are known to be, or may potentially be, recruited or used in hostilities.
Answer: Section 699C of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008 provides that Foreign Military Financing (“FMF”) appropriated in that Act may not be provided to the government of a country identified in the U.S. Department of State Country Reports on Human Rights Practices as having government armed forces or government supported armed groups that recruit or use child soldiers. FMF is funding that is granted to a foreign government for the purchase of defense articles and services. The Secretary of State may overcome this restriction by certifying to the Congressional Appropriations committees that the government of such country has implemented effective steps to demobilize children from its armed forces and/or supported armed groups, and prohibit future recruitment and use of child soldiers. In addition, it is within the discretion of the Secretary of State to waive application of this provision after determining and reporting to the Congressional Appropriations Committees that such a waiver is important to the national interest of the United States.
Section 699G of the same act prohibits provision of FMF, the granting of defense export licenses, or the sale of military equipment or technology to Sri Lanka unless the Secretary of State certifies, among other things, that the Government of Sri Lanka is bringing to justice members of the Sri Lankan military who have been complicit in the recruitment of child soldiers. This restriction does not apply to the sale of equipment for maritime and air surveillance or for communications.
Also, Section 110 of the Trafficking Victims Protection Act (TVPA) of 2000 restricts nonhumanitarian and nontrade-related foreign assistance to a country that is on Tier 3 of the State Department’s annual Trafficking in Persons Report if that country fails to make significant efforts to bring itself into compliance with the minimum standards for the elimination of trafficking in persons as outlined in the TVPA. The President may waive the restriction in full or in part. Child soldiering is considered to be a unique and severe manifestation of trafficking in persons that involves the unlawful recruitment of children through force, fraud or coercion to be exploited for their labor or to be abused as sex slaves in conflict areas.
In addition, the United States integrates human rights considerations, including the use of child soldiers, as part of the standard review for countries of concern prior to the granting of arms export licenses or deciding to sell defense articles or defense services.
List of Annexes
1. U.S. War Crimes Statute (18 U.S.C. § 2441)
2. Accessions of Individuals Below Age 18 to U.S. Armed Services (2004-2007)
3. Military Recruiting and Recruiter Irregularities (2006)
4. U.S. Asylum Seekers from Conflict-Affected Countries: Individuals under 18 Who Filed as Principal Applicants (2005-2007)
5. Unaccompanied Minors who were Principal Applicants for Refugee Status (2005-2007)
6. DHS Interviews of Unaccompanied Minors who were Principal Applicants for Refugee Status (Statistical Profile for Selected Nationalities, 2007)
7. Defensive Asylum Applications Filed by Juveniles in their Own Right (2005-2007)